The Social Media Risk Assessment For Your Law Firm and Your Clients

POSTED ON November 18, 2016

By Andy Adkins – This topic reminds me of a “story” I heard several years ago. It goes like this:

After passengers boarded the newest, most technologically-advanced aircraft in the world, an announcement came over the loud speakers. “Good afternoon, ladies and gentlemen. I’m Captain Otto Pyllo and wanted to let you know that you should be comforted by the fact that this plane will be flying totally automatic. We hope you enjoy your flight and I can assure you that nothing can go wrong, go wrong, go wrong, …”

Social Media is an area that everyone is aware of, but many may not understand (or even care) the various risks of using social media, especially in the workplace. People post all kinds of things on social media and we are seeing more and more relevancy in legal matters.

In most law firms, the culture has always been, “Protect the Firm, Protect the Client, Protect the Attorney & Staff.” That being said, many firms may not have any type policy in place for using social media. Social Media, meaning Facebook, Twitter, Instagram, LinkedIn, YouTube, or any of dozens more, by nature is an individual type social activity. Simply put, individuals are the ones who post on social media sites, not companies or corporations.

Interestingly, those who often bury their head in the sand over such things commonly perceive that social media is a technology risk that should be mitigated by using technical controls. Nothing can be further from the truth. Sure, you can ask your IT department to lock out Facebook and other social media accounts, but if some of your employees conduct business through these social media sites, you’ve just put restrictions on them. And besides, that IT lockdown is ONLY on the firm-owned equipment. I can guarantee you that your employees use social media outside the workplace. Social media risks are people risks, NOT technology risks.

A commonly quoted example of a social media mishap occurred in April 2014, when a U.S. Airways employee inadvertently tweeted a pornographic image to a customer in response to a customer service complaint. That one Tweet was retweeted more than 13,000 times and caused significant international headlines and certainly didn’t help with U.S. Airways’ reputation.

Some Interesting Social Media Statistics

* Facebook has 1.7 billion monthly active users

* YouTube has 1.0 billion monthly active users

* Twitter has more than 313 million monthly active users

* More than 70% of users access social media from a mobile device

* 60% of “social media time” is spent on smartphone and tablets

* Americans spend an average of 37 minutes daily on social media, more than they spend on e-mail

* One million Internet pages can now be accessed with the “Login with Facebook” feature

Social Media is NOT a fad or a trend – it’s how people communicate and socialize today. Even your own employees, who may have your company or firm name on their social media account (“Employed by”) may be posting on social media and that tie from their personal post to your firm could be a potential risk.

As an example, consider states that recently passed marijuana laws. An employee in a law firm in one of those states posted a negative comment about legalizing marijuana on his own personal Facebook page. It was noted that this person worked for a law firm. That law firm became “Almost Famous” because of that personal post by one of its own employees. Companies can no longer control “the message” about their organization because social media is personal and individuals can sometimes contribute to what is said about your company, good and bad, and social media may perceive that post in an unfriendly fashion. Social Media is a risk.

As in the example above, if one of your employees posts a negative comment about your company on their own personal social media site, can you fire them? Without a social media policy or social media training, are they protected by federal law? If one of your employees posts a comment (positive or negative) on a social media site that is not compliant with industry regulations, what are the ramifications to your firm?

As most attorneys tell me, “it depends.”

The best advice I can provide is to have, as a minimum, the following three things in place:

* Social Media Policy – put it in writing and have all employees read it and sign it. The Social Media Policy doesn’t have to be complicated, but having one in place sets the stage for protection. If you fire one of your employees for posting on social media, the first item their attorney will request is your firm’s Social Media Policy. Check out our recent article: Social Media Policies.

* Social Media Training – because almost everyone hits a social media site every day, whether at work or at home, it’s imperative for employees to understand the implications of posting a message on a personal site that references the firm. Those employees with greater accountability should receive more in-depth training. In the fired employee example, your attorney will present not only the firm’s Social Media Policy, but will also demonstrate that your company provides adequate training on Social Media Use.

* Social Media Monitoring – “trust, but verify.” Nothing more need be said.

Andy Adkins – CIO – Social Evidence

Andy Adkins is the Chief Technology Officer of Social Evidence, LLC, a leading cloud-based social media collection, organization, and analysis application. He has been an independent legal technology consultant for more than 25 years, a past chair of the ABA TECHSHOW (2000, 2001) and past co-chair of LegalTech Conferences (2000-2007). He is the author of “The Lawyer’s Guide to Practice Management Systems,” published in April 2009 by the ABA Law Practice Management Section. He can be reached at 352.538.5346, andy.adkins@social-evidence.com, or www.social-evidence.com.

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